After successful demonstrations across the country earlier this year in response to President Trump’s controversial immigration-related executive orders, activists are organizing again. Following “A Day Without Immigrants” on February 16th, immigration advocates now have their eyes set on May 1st, or “May Day.” May 1st has been a day of activism, particularly in the area of labor, for many years. This year, immigrant employees and business owners are being urged to stay home on May Day in an effort to demonstrate the important role immigrant workers play in the US economy. This campaign raises legal issues for employers on two fronts.

First Legal Issue Implicated: The first issue implicated is concerted activity and the protections provided by the National Labor Relations Act (NLRA). Many individuals perceive the NLRA as a law only pertaining to a unionized workforce. However, NLRA provides all employees with the right to join together to achieve a common goal. This includes banding together for walkouts.

  • What does this mean for employers? Employers, therefore, are prohibited from taking adverse action against an employee for exercising his/her right to plan this “walkout.” For example, an employer that receives notice that an employee is encouraging others on Facebook to stay home on May 1st cannot discipline that employee for this behavior.

  • What can employers do? Employers should not ignore the situation. First, employers should let their employees know that they understand the desire to speak out. Employers can explain that they appreciate the message that a walkout is intended to express because they already understand the contributions immigrants have made to America and the impact that immigration issues have on families. Where applicable, employers can tell employees that they belong to trade organizations that support immigration reform and that they are also working for change. An employer can also make clear that employees should not feel pressured to walk out just because others have stated that they intend to. Employees should be informed that they can be supportive of the issues and still come to work.

  • With respect to the issue of absences resulting from a walkout, employers can remind employees of the company’s attendance policy in advance. However, employers should avoid terminations or discipline if an absence is related to a walkout. Disciplining an employee who does not work a scheduled shift may be appropriate if they have violated company policy, however it is important to carefully consider the risks involved with this. There could be serious liability if the National Labor Relations Board finds that an employer imposed discipline for engaging in protected activity. Beyond that, negative press could result if an employee is perceived to have been punished for aligning with the May Day protests.

  • What are the limits as to what employees can do at the workplace? Although concerted activity is protected, employees can lose this right when they engage in an inappropriate manner. For example, employees that in any way advocate destruction of property could be disciplined.

The Second Legal Issue Implicated: The second issue implicated is the employer’s immigration compliance efforts. It is very important not to assume that employees who participate in a walkout or support executive action are undocumented workers. There is no legal basis to assume that employees who demonstrate, or display emblems and flags in solidarity with the protesters, are themselves undocumented workers. Expression at the workplace does not constitute constructive notice to the employer that an employee is illegally working in the United States. National immigration policies are an important issue to the whole immigrant community, documented and undocumented individuals alike. Many employees have mixed-status families, and are heavily invested in immigration-related laws and policies. A recent study confirmed that over half of all immigrant families have members with a combination of legal statuses. Therefore, it is important to make sure that managers do not jump to conclusions regarding an employee’s work authorization. Whether an employee is authorized to work in the U.S. is a determination made at the start of the employment relationship when he/she completes the I-9 Form. Employers cannot take action based on suspicions.

That being said, employers should ensure that the HR staff is up-to-date on Form I-9 compliance. There has to be a good system in place to make sure the current version of the form is completed accurately and timely. All employers should now be using the New Form I-9.

DISCLAIMER. Please note that this presentation is for informational purposes only and provides general information concerning employment and immigration law to help you identify when you may need additional advice. It is not an exhaustive treatment of the statutes, case law or regulations that are involved with the subject. Please recognize that the law is developing rapidly in this area and you will want to obtain current legal advice on your specific situation before taking action. Employment and Immigration law liabilities are often highly dependent on the particular facts and circumstances of the individual case or situation. As such, employers should seek the advice of counsel prior to making their determinations. Monty & Ramirez LLP is available to answer any employment or immigration related issue(s) with Your Company.